States of Emergency - Centre for Policy Alternatives

derogability.
 Even
 in
 times
 of
 most
 serious
 public
emergencies,
 States
 that
 interfere
 with
 the
 freedom
 to
manifest
one’s
religion
or
belief
must
justify
their
actions
by
referring
 to
 the
 requirements
 speciKied
 in
 article
 18,
paragraph
 3. On several occasions the Committee has
expressed its concern about rights that are non‐derogable
according to article 4, paragraph 2, being either derogated
from or under a risk of derogation owing to inadequacies
in the legal regime of the State party.” 252
This is a salutary observation: the fact that a right is nonderogable
under Article 4 (2) does not mean that during a state of
emergency when there may be interference with the right in fact,
that that interference will escape scrutiny by the Committee. The
Committee will examine whether such interference is within the
‘four corners’ of the restrictions of the speciLic right allowed by the
ICCPR. The legalistic response that the right is non‐derogable, and
therefore the State could not in law interfere with its enjoyment,
will not preclude scrutiny by the Human Rights Committee.
4.3.5
The
Principle
of
Proportionality
The principle of proportionality constitutes a general principle of
international law, Linding application in the customary
international law of reprisals and self‐defence, the humanitarian
law of war, the law of non‐forcible countermeasures, and in the
law relating to the delimitation of the continental shelf. It is of
course, a fundamental principle of the international law of human
rights.
252
para.7, emphasis added
160